Sunday, October 01, 2006

Many people have been lamenting "loss of freedom" in USA. American Congress passed laws that among other things allows torture, warantless searches, and imprisoning people without a trial. Legal and illegal election fraud is rampant, and wars can be started without aproval of the Congress. Constitution is pretty much irrelevant at this point. Is it death of democracy and freedom in America ? No.

Constitutions mean nothing. They are just pieces of paper. The 1936 Soviet constitution (passed during Stalin's time) for example stated that:

Article 112Judges are independent and subject only to the law.

Article 120Citizens of the U.S.S.R. have the right to maintenance in old age and also in case of sickness or loss of capacity to work. This right is ensured by the extensive development of social insurance of workers and employees at state expense, free medical service for the working people and the provision of a wide network of health resorts for the use of the working people.

Article 121Citizens of the U.S.S.R. have the right to education. This right is ensured by universal, compulsory elementary education; by education, including higher education, being free of charge; by the system of state stipends for the overwhelming majority of students in the universities and colleges; by instruction in schools being conducted in the native Ianguage, and by the organization in the factories, state farms, machine and tractor stations and collective farms of free vocational, technical and agronomic training for the working people.

Article 122Women in the U.S.S.R. are accorded equal rights with men in all spheres of economic, state, cultural, social and political life. The possibility of exercising these rights is ensured to women by granting them an equal right with men to work, payment for work, rest and leisure, social insurance and education, and by state protection of the interests of mother and child, prematernity and maternity leave with full pay, and the provision of a wide network of maternity homes, nurseries and kindergartens.

Article 123Equality of rights of citizens of the U.S.S.R., irrespective of their nationality or race, in all spheres of economic, state, cultural, social and political life, is an indefeasible law. Any direct or indirect restriction of the rights of, or, conversely, any establishment of direct or indirect privileges for, citizens on account of their race or nationality, as well as any advocacy of racial or national exclusiveness or hatred and contempt, is punishable by law.

Article 124In order to ensure to citizens freedom of conscience, the church in the U.S.S.R. is separated from the state, and the school from the church. Freedom of religious worship and freedom of antireligious propaganda is recognized for all citizens.

Article 125In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:

1. freedom of speech;

2. freedom of the press;

3. freedom of assembly, including the holding of mass meetings;

4. freedom of street processions and demonstrations.

These civil rights are ensured by placing at the disposal of the working people and their organizations printing presses, stocks of paper, public buildings, the streets, communications facilities and other material requisites for the exercise of these rights.

Article 127Citizens of the U.S.S.R. are guaranteed inviolability of the person. No person may be placed under arrest except by decision of a court or with the sanction of a procurator.

Article 128The inviolability of the homes of citizens and privacy of correspondence are protected by law.

Article 134Members of all Soviets of Working People's Deputies--of the Supreme Soviet of the U.S.S.R., the Supreme Soviets of the Union Republics, the Soviets of Working People's Deputies of the Territories and Regions, the Supreme Soviets of the Autonomous Republics, and Soviets of Working People's Deputies of Autonomous Regions, area, district, city and rural (station, village, hamlet, kishlak, aul) Soviets of Working People's Deputies--are chosen by the electors on the basis of universal, direct and equal suffrage by secret ballot.

Article 135Elections of deputies are universal: all citizens of the U.S.S.R. who have reached the age of eighteen, irrespective of race or nationality, religion, educational and residential qualifications, social origin, property status or past activities, have the right to vote in the election of deputies and to be elected, with the exception of insane persons and persons who have been convicted by a court of law and whose sentences include deprivation of electoral rights.

Article 136Elections of deputies are equal: each citizen has one vote; all citizens participate in elections on an equal footing.

Article 137Women have the right to elect and be elected on equal terms with men.

So what do we have here ? Guarantees of freedom of speech, of the press, of assembly, of conscience, and of religious worship. It contains equivalent of habeas corpus provisions. It protects against unreasonable searches. Unlike the American constitution, it actually guarantees right to vote. Surprisingly this basic right is not guaranteed by American constitution. It contains very strong equality provisions, including a very important provision of education in native language (Soviet Union had many minorities). It also contains guarantees of free access to education and health care, and of social security. This is 1936, time of Stalin.

So the most genocidal state in history of mankind had stronger human rights provision in its constitution than most of the countries have now.

Was Soviet Union somehow exceptional ? Not at all. Most of the countries in 20th century, including ones with worst human rights record, have human rights guarantees in their constitutions. In particular constitution of USA wasn't worth that much. All branches of government at all levels disregarded it when they felt like doing so. The Supreme Court was often effective in limiting the abuse, but in many cases it rubberstamped human rights abuses and other violations of the constitution. Some examples of abuses of human rights and separation of powers allowed by the Supreme Court (some of them overturned later):

The situation is far better than it was in Soviet Union. American Supreme Court is better than most when it comes to limiting human rights abuse by government, but it keeps letting the Constitution be severely broken. And there are no other legal ways of enforcing the Constitution.

Constitutional guarantees of human rights and limits on government power are worth less than the paper they're written on if ways of enforcing them are insufficient.

Seriously, what USA needs right now is a new constitution, or a major update. The reality is different than it was in 18th century, and answers to many questions should be explicitly written, instead of judges deciding whichever way they felt like. Constitution does not claim that federal government has control over everything, it does assert gun rights, it doesn't say anything about abortion and homosexuality rights. Such de-facto changes should be given de-jure status. Sure, judical activism is all right sometimes, but it's a short-term fix, not a long-term solution. Basic rights should be recognized - right to vote, including right to have one's vote effectively counted, and reasonable protection against gerrymandering (in most countries district boundaries are set by independent elections commission).

Protection against abuse must become much stronger. USA is about the only country where Supreme Court packing is even being seriously considered, and where supreme court judges are so involved in politics. In very few countries (mostly not very democratic ones) president gets a total control over every aspect of executive powers (including powers that were supposed to be handled by individual states), without any external control or oversight, and additionally has huge influence on the legislature and can even declare de-facto wars. There is no need for one person to have that much power. There is no need to use insane election systems. There is no reason for making challenging constitutionality of laws that difficult - it should be possible to go to Supreme Court directly (in many countries ombudsman can do that, or a group of any 15 members of parliament etc.). The legal system is known to biased for big corporations and against the poor and minorities, and this can be limited, even if not eliminated.

Back in 18th century the Constitution was an experiment. Some things worked well, others less so. But now we have many years of experience with different solutions, in so many countries. What is everybody still waiting for ? It is a plausible scenario for elections to get stolen by massive use of gerrymandering, denying right to vote to minorities, Diebold machines and other creative methods, then the Supreme Court to get packed by pro-government judges, and to extend its interpretations of Constitution just a little bit further to validate even more serious violations of human rights. Maybe it's not happening yet, but it doesn't seem that far off.

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